01991338
10-22-1999
Martin L. Grady Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Martin L. Grady Sr. v. United States Postal Service
01991338
October 22, 1999
Martin L. Grady Sr., )
Appellant, )
)
v. ) Appeal No. 01991338
) Agency No. 1-B-021-0075-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 1, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on November 5, 1998,
pertaining to his complaint of unlawful employment discrimination
in violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of physical disability and age when:
Via letter dated December 2, 1996, appellant was advised that he was
not interviewed/selected for the position of Supervisor, Maintenance
Operations, EAS-16;
Via letter dated May 20, 1997, appellant was advised that he was
not interviewed/selected for the position of Supervisor, Maintenance
Operations, EAS-16;
Via letter dated October 15, 1997, appellant was advised that he was not
interviewed/selected for the position of Security Engineering Technician,
EAS-16;
Via letter dated May 7, 1998, appellant was advised that he was not
interviewed/selected for the position of Supervisor, Maintenance
Operations, EAS-16;
On May 8, 1998, appellant's equipment locker was searched for a vacuum
cleaner;
On May 9, 1998:
Appellant was denied use of a vacuum cleaner;
Appellant was denied sick leave;
Appellant was given a direct order to go to the Waltham Hospital for a
medical evaluation;
Appellant was charged with 6.23 hours of Absence-Without-Official-Leave
(AWOL); and
On May 12, 1998, appellant was issued a Letter of Warning (LOW),
charging appellant with failing to follow instructions.
The agency accepted allegations (4), (5), (6)(a)-(d), and (7), but
dismissed allegations (1), (2), and (3) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically, the
agency found that appellant sought counseling on June 25, 1998, more than
forty-five (45) days after to the occurrence of allegations (1) - (3).
On appeal, appellant submits a copy of a letter dated November 14, 1998,
addressed to the agency. Therein, appellant argued that he did not
realize he was being discriminated against until the later allegations
occurred, and that appellant realized he was being subjected to a pattern
of discrimination. Appellant also argues that the agency improperly
ignored an allegation that appellant suffered from harassment.
In response, the agency argues that allegations (1), (2), and (3) involve
distinct non-selections that are not part of a continuing violation.
The record includes a letter dated November 20, 1998, amending the
agency's FAD to accept an additional issue -- appellant was subjected
to harassment. The record contains appellant's request for counseling,
dated June 25, 1998. The record also includes a copy of the letters
informing appellant of his non-selections, dated December 2, 1996, May 20,
1997, October 15, 1997, and May 7, 1998. These letters were written by
three (3) different agency officials, from various departments within
the agency.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency has failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does
not constitute a continuing violation in its final decision. Though the
agency did not address the issue of continuing violation in its FAD,
we find that it would be futile to remand appellant's complaint for
consideration of this issue, as it has been addressed by the agency on
appeal. Therefore, we will determine whether the dismissed allegations
constitute a continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (Apr. 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 20, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Sept. 19, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who
believed he had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose his claim, as distinguished from the
situation where a plaintiff is unable to appreciate that he is being
discriminated against until he has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
In the present case, appellant was denied several positions from
1996 through 1998, but appellant failed to contact a counselor until
June 25, 1998. Appellant does not contend that he was unaware of
his nonselection, of the selectee's identity, or of the selecting
official's identity. Appellant has not provided any other persuasive
evidence that he developed a reasonable suspicion only forty-five
(45) days prior to June 25, 1998. Therefore, appellant should have
realized that he was being discriminated against upon the occurrence
of each non-selection. See Farrell v. Department of Health and Human
Services, EEOC Request No. 05940981 (Aug. 3, 1995) (nonselection triggers
reasonable suspicion when appellant knows of nonselection, and is aware
of who was selected); Gruber v. Department of Health and Human Services,
EEOC Request No. 05940489 (nonselection triggers reasonable suspicion
when appellant knows of the nonselection, who was selected, and is aware
of generally perceived biases of the selecting official). Further, the
Commission finds that the nonselections, involving two different positions
and three different selecting officials, were discrete actions with a
degree of permanence that should have triggered appellant's awareness
of his duty to seek counseling promptly. See Hicks v. United States
Postal Service, EEOC Request No. 05970638 (Dec. 29, 1998) (allegations
are distinct when there is no evidence that all of the titles involved
similar positions, required similar qualifications, and involved the same
selecting officials). Accordingly, allegations (1), (2), and (3) are not
part of a continuing violation, and the agency's dismissal was proper.
It is well-settled that past alleged discriminatory events, which
were not the subject of timely complaints, may be used as background
evidence for a timely complaint, although they otherwise have no legal
consequences under Title VII. See United Airlines v. Evans, 431 U.S. 553,
558 (1977). Consequently, appellant may use allegations (1), (2), and
(3) as background evidence for his accepted allegations.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
October 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations